Residential Search held Invalid by Appellate Court

The First District Court of Appeals, which includes Pensacola, Escambia, Santa Rosa, Okaloosa and Walton Counties, issued a favorable opinion upholding the Fourth Amendment rights of a homeowner against unreasonable searches and seizures this last week. In Powell v. State, 38 Fla. L. Weekly D1140a (Fla. 1st DCA 2013) the issue was whether police officers entering Powell’s property and peering into a window of his mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment.

The appellate court held that the officers’ intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand’s length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test.

Either way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. The court reversed the convictions, which were based entirely on evidence obtained due to the unlawful search. The First DCA reversed the trial court’s denial of the motion to suppress and it is likely that ultimately all evidence in Mr. Powell’s case will be suppressed and the case will have to be dismissed by the prosecutor’s office.

I wrote an lengthy article that was published in the Florida Association of Criminal Defense Lawyers Magazine a while back about law enforcement being in a place and obtaining incriminating evidence when they had no right to be on the defendant’t property when they observed the evidence and obtained an alleged incriminating statement from my client. The name of the article is “Defining the Amorphous World of Curtilage for Fourth Amendment Purposes” and can be read by clicking the hyperlink of the articles name. The article goes into detail about what law enforcement officers can and cannot do when attempting to obtain incriminating evidence when entering upon a citizen’s residential property.

If we can be of help to you with the issue of search and seizure, be it in a residential setting, automobile search or even a personal physical search please contact us at M. James Jenkins and Associates. Again, if you are approached by law enforcement, under any of these circumstances it is generally best to politely refuse to speak to the officers until you have sought the advice of legal counsel. (There are certain times when you may not legally refuse a search, for example if law enforcement has a search warrant, or if they have probable cause to search your car or your person. However, often refusing to allow law enforcement to search when the search or the questioned posed to you can be voluntarily answered, sometimes refusing to acquiesce or “just give in” with what ever the officer asks you to do, will make the difference between being arrested and not being arrested. We are here to help you and be your advocates to ensure everything is done to protect your rights and the rights of all law abiding citizens.